Decided on September 08,2006



K.Gnanaprakasam, - (1.) THIS Miscellaneous Appeal is directed against the Order dated 24.3.2006 passed in MA-134/2003 I OA-1639/ 1998 by the DRT-I at Chennai. The defendants in the OA are the appellants. The OA filed by the respondent Bank was decreed ex parte on 13.7.1999. The defendants 1, 2 and 4 have filed an application to set aside the ex parte order and also to condone the delay in filing the appeal and for stay. The application to condone the delay in MA 134/2003 came to be dismissed by the DRT by its order dated 24.3.2006, and the same is under challenge in this Appeal.
(2.) Before this Tribunal, S.R. Baskaran, the 2nd defendant in the OA, filed the Affidavit for himself and on behalf of other defendants 1 and 4, wherein he has stated that they were carrying on business at No. 69/9, Aryagowda Road, West Mambalam, Chennai, and they were not served with any summons from the Tribunal, but however, they were served with the notice from the Bank through their Advocate to the correct address at No. 69/9, Aryagowda Road, West Mambalam, Chennai-33, on 14.3.1998 calling upon them to pay the dues to the Bank and except the said notice, they were not in receipt of any other notice from the Tribunal. All of a sudden the 4th defendant in the OA, received a letter from the respondent Bank to her place of working informing about the decree passed by the Tribunal stating that the amount due was around Rs. 15,19,405/- and after adjusting the sale proceeds of an amount of Rs. 3,05,000/-, still there was a balance of Rs. 7.14,405/- payable by the defendants to the Bank and the said letter was received by the 4th defendant on 20.3.2003, and thereafter, the 2nd defendant approached the respondent Bank for particulars and it did not furnish any particulars and hence he filed necessary copy of Application before the DRT to get the particulars and got the same on 21.4.2003 and on 24.4.2003, and therefore, he has filed the application to set aside the decree on 9.5.2003. It is further stated that the address furnished in the proceedings of the DRT is No. 69/3, Aryagowda Road, but whereas the 1st defendant was carrying on business at No. 69/9, Aryagowda Road and the Bank had furnished a wrong address with a view to get an ex parte order from the Tribunal and also got an ex parte order. As the respondent Bank has not furnished the correct address, the appellants were not in receipt of the notice and the summons from the Tribunal and only in the said circumstances, they were set ex parte and the ex parte decree passed against them works hardship and their properties were also sold pursuant to the ex parte decree. There was delay of 20 days in filing the application to set aside the ex parte order dated 13.7.1999, and prayed to condone the said delay. The respondent Bank filed a detailed counter wherein they denied the statement of the appellant that they came to know of the order only on 20.3.2003, when the 4th defendant received the letter about the case in her place of work viz. Queen Marys College, Chennai. But on the other hand, as early as on 21.2.2001 and 24.2.2001, the Bank wrote a letter to the 4th defendant in connection with the Order passed by the DRT in the OA, and she was called upon to furnish certain clarifications as Recovery Certificate was issued by the DRT. The respondent also sent a letter on 21.2.2001 about the order passed against the 4th defendant to Queen Marys College. That apart, the 2nd defendant by his letter dated 20.3.2001 sent a detailed letter to the Bank proposing to settle the matter and also offered to pay Rs. 1.50 lakh immediately and the balance of Rs. 6.50 lakh within six months. It is, therefore, stated that as early as on 21.2.2001, the defendants were aware of the decree and hence their contention that they came to know of the case only on 20.3.2003 is not correct. It is also stated that the order of attachment was delivered personally to the defendants on 22.3.2001. The respondent Bank also referred to certain correspondence between them and the defendants, to establish that the appellants/defendants had knowledge of the decree prior to 20.3.2003 itself, but they have not taken any diligent steps to set aside the decree and to contest the OA.
(3.) THE Tribunal was of the view that after the issuance of the Recovery Certificate, the Presiding Officer becomes functus officio to probe into the legality or validity and the question of nullity or the jurisdiction of the Civil Court which passes the decree cannot be gone into by the Presiding Officer and by relying upon the decision rendered in the case of Kumar v. Indian Bank III (2002) BC 35, and also the decision of the DRAT in I (1999) BC 317, dismissed the Petition. I have heard the learned Advocate for the Appellants and the respondent.;

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